Citation Nr: 0816874
Decision Date: 05/22/08 Archive Date: 06/04/08
DOCKET NO. 06-17 011 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an effective date earlier than December 23,
2005 for the grant of service connection for testicular
atrophy.
ATTORNEY FOR THE BOARD
James A. DeFrank, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1956 to
January 1959.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a March 2006 rating decision by the RO in
Columbia, South Carolina, which in part, granted service
connection at a 20 percent rating for testicular atrophy,
effective December 23, 2005.
In a statement received in November 2006, the veteran made
arguments that could be construed as a claim for an increased
rating for testicular atrophy. This issue is referred to the
RO for initial adjudication.
FINDING OF FACT
The earliest document in the claims file that may be accepted
as a claim for service connection for testicular atrophy is a
signed VA form 21-526 which is date-stamped as having been
received by the RO on December 23, 2005.
CONCLUSION OF LAW
The criteria for an effective date prior to December 23, 2005
for testicular atrophy have not been met. 38 U.S.C.A. § 5110
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.155, 3.157, 3.400
(2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations imposes obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§
3.102, 3.156(a), 3.159, 3.326(a) (2007).
The courts have held that were the underlying claim for
service connection has been granted and there is disagreement
as to downstream questions, the claim has been substantiated
and there is no need to provide additional VCAA notice nor is
there prejudice from absent VCAA notice. Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007). The issue in this appeal
arises from the veteran's disagreement with the effective
date established with the grant of service connection. The
courts' reasoning in Hartman and Dunlap leads to the
conclusion that further VCAA notice is not required in this
case.
VA has complied with its duty to assist the veteran with the
development of his claim under the VCAA by obtaining all
pertinent records.
Analysis
The effective date for the grant of service connection for
disability compensation is the "day following separation from
active service or date entitlement arose if claim is received
within 1 year after separation from service; otherwise, date
of receipt of claim, or date entitlement arose, whichever is
later." 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §
3.400(b)(2)(i).
The date of receipt of a claim is the date on which a claim,
information, or evidence is received by VA. 38 C.F.R. §
3.1(r) (2007). A "claim" is defined broadly to include a
formal or informal communication in writing requesting a
determination of entitlement or evidencing a belief in
entitlement to a benefit. See 38 C.F.R. § 3.1(p); see also
Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v.
Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or
action indicating an intent to apply for one or more benefits
under the laws administered by VA, from a veteran or his
representative, may be considered an informal claim. Such
informal claim must identify the benefit sought. Upon
receipt of an informal claim, if a formal claim has not been
filed, an application form will be forwarded to the claimant
for execution. If received within one year from the date it
was sent to the veteran, it will be considered filed as of
the date of receipt of the informal claim. When a claim has
been filed which meets the requirements of 38 C.F.R. §§ 3.151
or 3.152, an informal request for increase or reopening will
be accepted as a claim. 38 C.F.R. § 3.155.
In the present case, the earliest document that can be
construed as a claim for service connection for testicular
atrophy is the veteran's VA Form 21-526, Veteran's
Application for Compensation and Pension which is date-
stamped as having been received by the RO on December 23,
2005.
The veteran argues that he should have been informed that he
should file for service connection by a doctor at the
conclusion of his service in 1959. There is no statutory or
regulatory provision that would authorize VA to grant an
earlier effective date for service connection on this basis.
Applicable law and regulations provide that the effective
date is controlled by the date VA received the claim.
The veteran has not contended that he filed a claim prior to
December 23, 2005, and there is no other evidence of an
earlier claim. The earliest effective date that can be
granted for the service connection for testicular atrophy is
the date of receipt of claim, December 23, 2005.
The law is controlling and not the facts. The appeal for an
earlier effective date than December 23, 2005, for the grant
of service connection for testicular atrophy must be denied
as a matter of law. Sabonis v. Brown, 6 Vet App 426 (1994).
ORDER
Entitlement to an effective date earlier than December 23,
2005 for the grant of service connection for testicular
atrophy is denied.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs